The immediate
cause for concern in these petitions is Section 66A of the Information
Technology Act of 2000. This Section was not in the Act as originally
enacted, but came into force by virtue of an Amendment Act of 2009 with
effect from 27.10.2009. Since all the arguments raised by several counsel
for the petitioners deal with the unconstitutionality of this Section it is
set out hereinbelow:
"66-A. Punishment for sending offensive messages through communication
service, etc.-Any person who sends, by means of a computer resource or a
communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will, persistently by making
use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three
years and with fine.
Explanation.- For the purposes of this section, terms "electronic mail" and
"electronic mail message" means a message or information created or
transmitted or received on a computer, computer system, computer resource
or communication device including attachments in text, image, audio, video
and any other electronic record, which may be transmitted with the
message."[1]
A related challenge is also made to Section 69A introduced by the
same amendment which reads as follows:-
"69-A. Power to issue directions for blocking for public access of any
information through any computer resource.-(1) Where the Central Government
or any of its officers specially authorised by it in this behalf is
satisfied that it is necessary or expedient so to do, in the interest of
sovereignty and integrity of India, defence of India, security of the
State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognizable offence relating
to above, it may subject to the provisions of sub-section (2), for reasons
to be recorded in writing, by order, direct any agency of the Government or
intermediary to block for access by the public or cause to be blocked for
access by the public any information generated, transmitted, received,
stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access
by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under
sub-section (1) shall be punished with an imprisonment for a term which may
extend to seven years and shall also be liable to fine."
3. The Statement of Objects and Reasons appended to the Bill which
introduced the Amendment Act stated in paragraph 3 that:
"3. A rapid increase in the use of computer and internet has given rise to
new forms of crimes like publishing sexually explicit materials in
electronic form, video voyeurism and breach of confidentiality and leakage
of data by intermediary, e-commerce frauds like personation commonly known
as Phishing, identity theft and offensive messages through communication
services. So, penal provisions are required to be included in the
Information Technology Act, the Indian Penal code, the Indian Evidence Act
and the code of Criminal Procedure to prevent such crimes."
The petitioners also contend that their rights under Articles 14 and 21 are
breached inasmuch there is no intelligible differentia between those who
use the internet and those who by words spoken or written use other mediums
of communication. To punish somebody because he uses a particular medium of
communication is itself a discriminatory object and would fall foul of
Article 14 in any case.
In conclusion, we may summarise what has been held by us above:breached inasmuch there is no intelligible differentia between those who
use the internet and those who by words spoken or written use other mediums
of communication. To punish somebody because he uses a particular medium of
communication is itself a discriminatory object and would fall foul of
Article 14 in any case.
Section 66A of the Information Technology Act, 2000 is struck down in its
entirety being violative of Article 19(1)(a) and not saved under Article
19(2).
Section 69A and the Information Technology (Procedure & Safeguards for
Blocking for Access of Information by Public) Rules 2009 are
constitutionally valid.
Section 79 is valid subject to Section 79(3)(b) being read down to mean
that an intermediary upon receiving actual knowledge from a court order or
on being notified by the appropriate government or its agency that unlawful
acts relatable to Article 19(2) are going to be committed then fails to
expeditiously remove or disable access to such material. Similarly, the
Information Technology "Intermediary Guidelines" Rules, 2011 are valid
subject to Rule 3 sub-rule (4) being read down in the same manner as
indicated in the judgment.
Section 118(d) of the Kerala Police Act is struck down being violative of
Article 19(1)(a) and not saved by Article 19(2).
All the writ petitions are disposed in the above terms.-2015 S.C. MSKLAWREPORTS
